Citation Nr: 1038009
Decision Date: 10/07/10 Archive Date: 10/15/10
DOCKET NO. 03-22 393 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to an increased rating for a lumbosacral strain with
degenerative joint disease, currently rated as 40 percent
disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
J. Schulman
INTRODUCTION
The Veteran had active service from July 1967 until July 1971.
This matter comes before the Board of Veterans' Appeals (BVA or
Board) from an October 2002 rating decision of the Department of
Veterans Affairs (VA), Regional Office (RO) in Waco, Texas.
This matter has previously been addressed by the Board, but was
remanded with directions for additional development. It is now
properly before the Board.
FINDINGS OF FACT
1. Lumbosacral strain with degenerative joint disease has been
productive of flexion to 80 degrees, extension to 20 degrees,
fatigue with muscle spasms and weakness in the low back, but no
functional ankylosis.
2. Left leg external popliteal nerve symptomatology has been
productive of distorted superficial tactile sensibility and
normal monofilament testing with decreased distal sensation.
3. Right leg external popliteal nerve symptomatology has been
productive of distorted superficial tactile sensibility, normal
monofilament testing with decreased distal sensation and
restricted deep tendon reflexes.
CONCLUSIONS OF LAW
1. Prior to September 23, 2002, the criteria for a disability
rating in excess of 40 percent for a lumbosacral strain were not
met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 1991);
38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.71a, Diagnostic Code
5295 (2001).
2. The criteria for a disability rating in excess of 40 percent
for lumbosacral strain with degenerative joint disease have not
been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West
2002); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.71a, Diagnostic
Codes 5237-5243 (2009).
3. The criteria for a disability rating of 10 percent for left
leg external popliteal nerve have been met. 38 U.S.C.A. §§ 1155,
5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159,
4.40, 4.45, 4.124a, Diagnostic Code 8521 (2009).
4. The criteria for a disability rating of 10 percent for right
leg external popliteal nerve have been met. 38 U.S.C.A. §§ 1155,
5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159,
4.40, 4.45, 4.124a, Diagnostic Code 8521 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009).
Proper notice from VA must inform the claimant of any information
and medical or lay evidence not of record (1) that is necessary
to substantiate the claim; (2) that VA will seek to provide; and
(3) that the claimant is expected to provide. 38 C.F.R.
§ 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).
For an increased-compensation claim, the Court of Appeals of
Veterans Claims had held that § 5103(a) required, at a minimum,
that VA notify the claimant that, to substantiate a claim, the
medical or lay evidence must show a worsening or increase in
severity of the disability. Vazquez-Flores v. Shinseki, 580 F.3d
1270 (2009).
The Board acknowledges that, in the present case, complete notice
was not issued prior to the adverse determination on appeal.
Under such circumstances, VA's duty to notify may not be
"satisfied by various post-decisional communications from which
a claimant might have been able to infer what evidence VA found
lacking in the claimant's presentation." Rather, such notice
errors may instead be cured by issuance of a fully compliant
notice, followed by readjudication of the claim. See, Mayfield
v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was
not provided prior to the RO's initial adjudication, this timing
problem can be cured by the Board remanding for the issuance of a
VCAA notice followed by readjudication of the claim by the RO);
see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the
issuance of a fully compliant VCAA notification followed by
readjudication of the claim, such as an SOC or SSOC, is
sufficient to cure a timing defect).
In this case, the VCAA duty to notify was satisfied subsequent to
the initial RO decision by way of letter sent to the Veteran in
August 2006 that fully addressed all notice elements, including
the requirements outlined by Vazquez-Flores. The letter informed
the appellant of what evidence was required to substantiate the
claim and of the division of responsibility between VA and a
claimant in developing an appeal. Therefore, the Veteran was
"provided the content-complying notice to which he [was]
entitled." Pelegrini, 18 Vet. App. at 122. Furthermore, the
claim was readjudicated with the issuance of a Supplemental
Statement of the Case in March 2010. Neither the Veteran, nor
his representative, have indicated any prejudice caused by this
timing error, and the Board finds no basis for finding prejudice
against the Veteran's appeal of the issue adjudicated in this
decision. See Shinseki v. Sanders, 129, S. Ct. 1696, (2009
Based on the foregoing, adequate notice was provided to the
Veteran prior to the transfer and certification of his case to
the Board and complied with the requirements of 38 U.S.C. §
5103(a) and 38 C.F.R. § 3.159(b).
Next, VA has a duty to assist the Veteran in the development of
the claim. To that end, VA must make reasonable efforts to
assist the claimant in obtaining evidence necessary to
substantiate the claim for the benefit sought, unless no
reasonable possibility exists that such assistance would aid in
substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159
(2009). Service treatment records have been obtained, as have
records of private and VA treatment. Furthermore, the Veteran
was afforded VA examinations including those in January 2009 and
January 2010 during which the examiners were provided the
Veteran's claims file for review, took down the Veteran's
history, considered the record, and reached conclusions based on
their examinations that were consistent with the evidence before
them. The examinations are found to be adequate for rating
purposes and meet VA's development duties under VCAA.
The Board finds that all necessary development has been
accomplished, and therefore appellate review may proceed without
prejudice to the appellant. See, Bernard v. Brown, 4 Vet.
App. 384 (1993). In addition to the evidence discussed above,
the Veteran's statements in support of the claim are also of
record. The Board has carefully considered such statements and
concludes that no available outstanding evidence has been
identified. Additionally, the Board has reviewed the medical
records for references to additional treatment reports not of
record, but has found nothing to suggest that there is any
outstanding evidence with respect to the Veteran's claim.
For the above reasons, no further notice or assistance to the
appellant is required to fulfill VA's duty to assist the
appellant in the development of the claim. Smith v. Gober,
14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002);
Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also
Quartuccio v. Principi, 16 Vet. App. 183 (2002).
Rating on Appeal
Disability evaluations are determined by evaluating the extent to
which a Veteran's service-connected disability adversely affects
his ability to function under the ordinary conditions of daily
life, including employment, by comparing his symptomatology with
the criteria set forth in the Schedule for Rating Disabilities
(rating schedule). 38 U.S.C.A. § 1155 (West 2002 & Supp. 2007);
38 C.F.R. §§ 4.1, 4.2, 4.10 (2009). If two evaluations are
potentially applicable, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that evaluation; otherwise, the lower rating will be
assigned. 38 C.F.R. § 4.7 (2009).
When all the evidence is assembled, the Board is then responsible
for determining whether the evidence supports the claim or is in
relative equipoise, with the appellant prevailing in either
event, or whether the preponderance of the evidence is against
the claim, in which case the claim is denied. See 38 U.S.C.A. §
5107(a); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49,
55 (1990).
When a claimant is awarded service connection and assigned a
disability rating, separate disability ratings may be assigned
for separate periods of time in accordance with the facts found.
Such separate disability ratings are known as staged ratings.
See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that
staged ratings are assigned at the time an initial disability
rating is assigned). In Hart v. Mansfield, the Court extended
entitlement to staged ratings to claims for increased disability
ratings where "the factual findings show distinct time periods
where the service-connected disability exhibits symptoms that
would warrant different ratings." Hart v. Mansfield, 21 Vet.
App. 505, 511 (2007). Here, the disability has not significantly
changed and a uniform evaluation is warranted. However, as
discussed below, regulatory changes affecting the Veteran's
rating have occurred during the pendency of his appeal and thus
separate rating periods have been considered and are evaluated.
Factual Background
In April 2001 the Veteran reported to a treatment clinic with
complaints of chronic lower back pain which began while we was
stationed in Vietnam. He reported that he had recently been
involved in a motor vehicle accident at work while driving his
Postal Service jeep. Since that time he had experienced
increasing pain with radiation down both legs. He complained of
numbness down the posterior thigh of the left leg associated with
burning pain, but with most of the pain localized to the low back
paraspinous and L5 area. The pain was a throbbing aching pain
with intermittent numbness, usually exacerbated by sitting. On a
verbal analog scale, pain score was a maximum of 8 and minimum of
3. On examination, the Veteran had mild pain with palpation over
the lower back, but full range of motion with flexion, extension,
and rotation. Both legs were without signs of atrophy. Motor
function was five out of five for all extremities, and gait was
normal. The Veteran was capable of waking on his toes and heels,
and sensory was intact to light touch. Magnetic resonance
imaging (MRI) of the lumbar spine revealed degenerative disc
disease, a bulge of the L4-5 disc with moderate left-side central
canal stenosis, and mild neural foraminal stenosis.
An MRI in July 2001 revealed disc bulge with narrowing of the
dural sac and bilateral neural foraminal narrowing at the L4-5
level which was greater on the left than the right. Following an
evaluation, the impression was of fatigue, muscle spasms in the
low back, and weakness in the low back resulting in a decreased
ability to climb stairs. The Veteran had no bowel or bladder
incontinence, loss of weight, or fever.
In August 2001 the Veteran was seen for low back pain which
"started soon after" his 1999 motor vehicle accident. Pain was
five to seven on a ten point scale and the Veteran had
intermittent numbness and tingling over the left hip radiating
over the posterolateral left thigh, and he noted new tingling on
his right side. There had been no bowel or bladder incontinence.
The Veteran was positive for fatigue, muscle spasms, weakness in
the low back and decreased ability to climb stairs.
Also in August 2001, he was assessed with a lumbar disc
herniation with left side L4-S1 stable radiculopathy.
In January 2002, the Veteran was continuing to have severe pain
in his lower back which was exacerbated when the Veteran severely
twisted his back while trying to avoid a dog attack. Following
the incident, the Veteran had an area of numbness in his left
anterior lateral thigh. Examination revealed decreased sensation
in the left L4 and L5 dermatomes, but normal reflexes
bilaterally. The assessment was of lumbar degenerative disease
at the L4-5 level, spinal stenosis, and bilateral lumbar facet
disease.
MRIs made by a private facility in July 2002 showed disc
protrusion at the L4-5 level, directed centrally and to the left,
producing foraminal encroachment on the left. Nerve root
compression on the left was likely. Facet arthropathy was also
seen bilaterally at this level, with mild foraminal compromise on
the right noted.
In a pain management progress note of January 2002, the Veteran
had moderate tenderness at the midline of the L4-5 level. He had
flexion to 60 degrees, extension to 10 degrees, and lateral
flexion to 5 degrees bilaterally and associated pain. There was
decreased sensation in the left L4 and L5 dermatomes, however
reflexes were normal bilaterally. The assessment was of lumbar
degenerative disease at the L4-5 level and spinal stenosis.
During a VA examination in September 2002, the Veteran stated
that he first injured his back while lifting boxes during service
in 1968. He reported a history including two incidents of acute
episodes that occurred "while batting" and while working on his
truck. He did not report to the examiner any incident involving
a motor vehicle accident. The Veteran had forward flexion to 35
degrees, with spasms in the paravertebral musculature requiring
the use of his hands to straighten up after flexing. He had no
extension, lateral tilt to 20 degrees bilaterally with spasms on
the side opposite to where he twists. There was no rotation of
the lumbar spine. Straight leg raising was to 70 degrees
bilaterally with complaints of severe low back pain. The
examiner stated that "just about anything I do with [the
Veteran's] legs results in the complaint of low back pain."
Deep tendon reflexes were 2+ at the patellar level and 1+ at the
Achilles level bilaterally. The diagnosis was of chronic lumbar
strain syndrome with degenerative joint disease and spinal
stenosis. Also in September 2002, the Veteran was treated for
back pain with a lumbar epidural steroid injection.
In May 2002, the Veteran had moderate tenderness in the midline
of L4-5 and bilateral paraspinal tenderness at the L4-5 and L5-S1
levels. On range of motion testing, he had flexion to 60
degrees, extension to 10 degrees, and lateral flexion to five
degrees bilaterally with pain. There was decreased sensation at
the L4 and L5 dermatome and reflexes were normal bilaterally.
Cranial nerves II-XII were intact and motor function was five out
of five. MRI of the spine showed severe spinal stenosis and
bilateral neural foraminal stenosis at the L4-5 level as well as
bilateral facet hypertrophy at the L4-5 and L5-S1 levels.
On evaluation in December 2002, the Veteran denied bladder and
bowel incontinence, but endorsed some bilateral weakness on first
waking up. He had decreased range of motion to 20 degrees of
flexion and zero degrees of extension, limited by pain, but with
questionable effort on the part of the Veteran. Axial loading
and rotation elicited grimacing and articulation of pain out of
proportion to the stimuli.
In June 2003 the Veteran complained of low back pain and was
being treated with methadone. He had no obvious signs of
neurologic deficit.
In a letter of September 2003, the Veteran stated the following
his motor vehicle accident three years prior, his back disability
had been worsening. He also stated that although he had
indicated "bicycle riding" as a hobby on a VA form, he did not
actually own a bicycle and had not ridden in many years.
In January 2004 a doctor's note requested excused absence for the
Veteran from work for two days due to acute exacerbation of
chronic pain from lumbar spondylosis.
The Veteran underwent VA examination in February 2004 at which
time he was only able to walk for one block at a time before
needing to take a break. He endorsed the use of a cane and back
brace at times. The Veteran's gait was good, though he did have
some limp due to surgery on his great toe, and he endorsed a
smooth gait prior to his toe surgery. The Veteran had forward
flexion to 30 degrees, side tilt to five degrees bilaterally,
extension to 10 degrees, and rotation to 25 degrees bilaterally.
Straight leg raising went to 60 degrees bilaterally and then the
Veteran had posterior thigh pain. The knee and ankle jerks were
2+ and symmetrical and there was no weakness of the extensors of
the great toe. In spite of his recent toe surgery, the Veteran
was able to heel and toe walk. The examiner opined that the
Veteran's symptoms were largely due to a lesion at the L4-5
level. Despite the severe stenosis described in prior medical
reports, the examiner did not identify any neurological deficit
during the examination.
In July 2004 the Veteran had decreased range of motion to 30
degrees of flexion and extension was "minimal," to less than
five degrees, and limited by pain. Midline and bilateral
paraspinal L2-5 tenderness was noted and described as worse on
the left side. Bilateral lower extremity strength was four out
of five. The assessment was of chronic lower back pain and
bilateral radiculopathy with degenerative disc disease.
Mild gait instability was noted in July 2005 and examination of
the back showed some limitation with active range of motion in
flexion, extension, and rotation. The Veteran had negative
straight leg raise in a sitting position bilaterally, and
strength was five out of five. The assessment was of bilateral
lower extremity radicular symptoms secondary to degenerative disc
disease and facet degenerative joint disease. Radiofrequency
ablation of the medial branch lumbar facet on the right L3
through S1 levels was performed in September 2005. The post-
operative diagnosis was of chronic low back pain and lumbar facet
arthropathy.
In September 2006, the Veteran had low back pain and right lower
radicular symptoms secondary to multilevel degenerative disc
disease complicated by facet degenerative joint disease. Pain in
his right side was worse than in his left side.
On evaluation by a private facility in March 2008, the Veteran
had "only minimal" tenderness in the paraspinal muscles of the
lumbar spine, but complained of constant numbness in the lower
left side of his lumbar spine. The cranial nerves were grossly
intact. Deep tendon reflexes were 2 to 3+ in the lower
extremities bilaterally and straight leg raising was negative
bilaterally in the sitting position. The conclusion was that
"in all reasonable medical probability," the Veteran's injuries
and pathologies were sustained in his 1999 motor vehicle
accident.
An MRI made in May 2008 showed mild facet hypertrophy at the L2-3
level, and generalized annular disc bulging without a focal
protrusion and mild facet hypertrophy at the L3-4 level. At the
L4-5 level there was disc protrusion or extrusion centrally and
extending to both sides of midline with caudal migration of disc
material below the level of the disc space. A mass effect on the
ventral thecal sac was productive of moderate to severe central
spinal stenosis, but no critical foraminal stenosis. Diffuse
posterior disc bulging without focal protrusion was seen at the
L5-S1 level, and the conus had a tip at the T12-L1 level that
appeared grossly normal.
On private evaluation in July 2008, the Veteran reported that his
primary area of pain was in the low back radiating to all five
toes on the left foot and described as aching, throbbing and
shooting posteriorly. The secondary area of pain was in the mid-
back and was described as aching. X-ray imaging revealed
significant narrowing of the L4-5 interspace with spurring
anteriorly of the vertebra at the L5 level. The Veteran was able
to flex slowly to 50 degrees without discomfort. From a seated
position, deep tendon reflexes at the knees and the ankles were
intact. Straight leg raise was positive bilaterally, left
greater than the right side, with reproduction of his low back
and left leg pain. Lasegue sign was negative, motor strength was
five out of five in the lower extremities, and dermatomal pattern
revealed numbness of the Veteran's entire lower left extremity
from the proximal thigh to all five toes. There was no
peripheral edema.
In May 2008, the Veteran's private osteopathic doctor stated
that, based on his treatment of the Veteran since March of that
year, there were objective findings of lumbar discopathy without
myelopathy, and lumbar radiculitis.
On VA examination in January 2009, the Veteran reported sharp
lower back pain that radiated into the buttock and calf
posteriorly. He had numbness and pain, with no periods of flare-
up. The Veteran noted no bowel or bladder incontinence and used
a cane. He reported that pain relief from steroid injections
lasted less than a day. The Veteran had a normal gait with a
cane. He was tender in the bilateral lumbar paraspinous
musculature, with spasm in the left lower lumbar paraspinous
muscles. Forward flexion was to 45 degrees and extension was to
10 degrees, both with pain throughout motion. The Veteran also
reported radiation into the left lower extremity with flexion and
extension. Right lateral rotation was to 5 degrees and left
rotation was to 10 degrees, both with pain throughout motion and
with radiation into the left lower extremity. Right lateral
flexion was to 15 degrees and left lateral flexion was to 10
degrees, both with pain throughout. Straight leg raising was
positive on the left at 45 degrees and negative on the right.
Both straight leg raises also produced low back pain. Motor
strength was five out of five in the right hamstrings and four
out of five in the left hamstrings. Sensation was intact to
sharp/dull testing in all dermatomes of both lower extremities.
Reflexes were 2+ in the deep tendons of the knee and 1+ in the
ankle deep tendons bilaterally. The Veteran had no additional
limitations following repetitive use other than increased pain
without further loss of motion. There was no effect of
incoordination, fatigue, weakness, or lack of endurance on the
Veteran's spine function. MRI of the lumbar spine shoed a
herniated nucleus pulposus at the L4-5 level that was deviated to
the left.
In October 2009, a private examiner stated that the Veteran's
lumbar radiculopathy directly contributed to his lower left
radiculopathy and that he had confirmed peripheral nerve
impairment. Based on an electromyograph, nerve impairment was
mild, and described as distorted superficial tactile sensibility
with normal monofilament testing for the left lower extremity.
The Veteran had an abnormal gait pattern, and was able to walk or
stand only for short periods of time. He also reported onset of
significant weakness at times. The report indicated that the
Veteran had right lower extremity impairments as well, which
included weakness and poor endurance. The sensory component of
electromyograph was found to be normal for the lower left
extremity.
In January 2010, the Veteran underwent VA examination and
reported flare-ups of low back pain approximately once a day
which cause him to stop, stretch and rest. These flare-ups
lasted for 30 minutes. The Veteran did not use braces, or
orthopedic assistive devices, and although he had been given a
cane by VA, he rarely used it. The Veteran stated that he was
able to walk for approximately two hours, and stand for three to
four hours, before needing to rest. Low back pain radiated into
both legs, but was greater on the left. Right side pain and
numbness extended to the posterior thigh level while left side
pain and numbness extended to the buttock, posterior thigh and
calf. Coughing and sneezing increased pain and gave him
radiating leg pain. The Veteran indicated that leg pain had
begun one and a half months prior and been steadily increasing.
There was no urinary or fecal incontinence.
The Veteran's gait was antalgic, deep tendon reflexes were one
out of four in the bilateral patella and Achilles, and Babinski
sign was absent. The Veteran had negative straight leg raise
sitting, but positive straight leg raise on the left, in a supine
position at 30 degrees. Straight leg raise in the supine
position on the right was negative. Patrick's sign was negative
bilaterally, and distal sensation was decreased in the bilateral
lower extremities to sharp and dull stimulation. Waddell's signs
were positive for axial loading and light touch. There was
tenderness to palpation on the left side. The Veteran had
flexion to 80 degrees, extension to 20 degrees, bilateral
rotation to 20 degrees, and bilateral lateral flexion to 20
degrees. The Veteran complained of pain at the endpoints of all
motion, but did not have increased fatigue, weakness, lack of
endurance, or incoordination on repetitive motion testing. He
did, however, endorse increased pain on repetitive motion.
Following a review of the record, the VA examiner concluded that
the Veteran's back condition was "degenerative in nature" and
most likely related to aging and attrition. The examiner's
assessment was that the Veteran had degenerative disc disease,
disc herniation with radicular symptoms, and facet arthropathy -
all of the lumbar spine. Finally, the examiner opined that
degenerative changes and the herniated disc with radicular
symptoms were more likely than not related to the Veteran's motor
vehicle accident in 1999.
Before discussion of the applicable law and regulations, the
Board notes that in spite of some inconsistencies in the record,
Veteran is found to be credible, and thus his testimony is
probative. Although his reported level of symptomatology does
vary somewhat, the evidence under consideration spans for more
than a decade in time, and thus some variation in symptomatology
is expected.
Rating Criteria
Disability evaluations are determined by evaluating the extent to
which a Veteran's service-connected disability adversely affects
his ability to function under the ordinary conditions of daily
life, including employment, by comparing his symptomatology with
the criteria set forth in the Schedule for Rating Disabilities
(rating schedule). 38 U.S.C.A. § 1155 (West 2002 & Supp. 2007);
38 C.F.R. §§ 4.1, 4.2, 4.10 (2009). If two evaluations are
potentially applicable, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that evaluation; otherwise, the lower rating will be
assigned. 38 C.F.R. § 4.7 (2009).
When all the evidence is assembled, the Board is then responsible
for determining whether the evidence supports the claim or is in
relative equipoise, with the appellant prevailing in either
event, or whether the preponderance of the evidence is against
the claim, in which case the claim is denied. See 38 U.S.C.A. §
5107(a); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49,
55 (1990).
When a claimant is awarded service connection and assigned a
disability rating, separate disability ratings may be assigned
for separate periods of time in accordance with the facts found.
Such separate disability ratings are known as staged ratings.
See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that
staged ratings are assigned at the time an initial disability
rating is assigned). In Hart v. Mansfield, the Court extended
entitlement to staged ratings to claims for increased disability
ratings where "the factual findings show distinct time periods
where the service-connected disability exhibits symptoms that
would warrant different ratings." Hart v. Mansfield, 21 Vet.
App. 505, 511 (2007). Here, the disability has not significantly
changed and a uniform evaluation is warranted.
The intent of the Rating Schedule is to recognize actually
painful, unstable or malaligned joints, due to healed injury, as
entitled to at least the minimum compensable rating for the
joint. 38 C.F.R. § 4.59. In determining the degree of
limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40
and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App.
202 (1995). In addition, when assessing the severity of a
musculoskeletal disability that is at least partly rated on the
basis of limitation of motion, VA is generally required to
consider the extent that the Veteran may have additional
functional impairment above and beyond the limitation of motion
objectively demonstrated, such as during times when his symptoms
are most prevalent ("flare-ups") due to the extent of his pain,
weakness, premature or excess fatigability, and incoordination.
DeLuca at 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59
(2009).
Disability of the musculoskeletal system is primarily the
inability, due to damage or infection in parts of the system, to
perform the normal working movements of the body with normal
excursion, strength, speed, coordination and endurance.
Functional loss may be due to the absence or deformity of
structures or other pathology, or it may be due to pain,
supported by adequate pathology and evidenced by the visible
behavior in undertaking the motion. Weakness is as important as
limitation of motion, and a part that becomes painful on use must
be regarded as seriously disabled. 38 C.F.R. § 4.40 (2009).
With respect to joints, in particular, the factors of disability
reside in reductions of normal excursion of movements in
different planes. Inquiry will be directed to more or less than
normal movement, weakened movement, excess fatigability,
incoordination, pain on movement, swelling, deformity or atrophy
of disuse. 38 C.F.R. § 4.45 (2009).
In the October 2002 rating decision on appeal, the Veteran was
granted an evaluation of 40 percent effective October 29, 1999
under 38 C.F.R. § 4.71a, Diagnostic Code (DC or Code) 5295 (2001)
for lumbosacral strain. He was also awarded a 40 percent rating
effective September 29, 2002 for chronic lumbar strain syndrome
with degenerative joint disease and spinal stenosis under 38
C.F.R. § 4.71a, DC 5295-5293 (2002).
The Board notes that in the October 2002 rating decision on
appeal, the Agency of Original Jurisdiction (AOJ) indicated that
the Veteran's service connected disability was "lumbosacral
strain and chronic lumbar strain syndrome with degenerative joint
disease and spinal stenosis." In supplemental statements of the
case issued in March and December 2004, the Veteran's service
connected disability was described as "chronic lumbar strain
syndrome with degenerative joint disease and spinal stenosis."
In statements of the case from March 2009 and March 2010,
however, the disability was described as "lumbosacral strain."
The October 2002 rating decision addressed the Veteran's
disability, in part, under 38 C.F.R. § 4.71a, DC 5293 (2001)
which pertained to intervertebral disc syndrome. The Board finds
this an indication that the AOJ previously considered
intervertebral disc syndrome and the fact that subsequent
statements of the case shortened the description of the Veteran's
disability to lumbosacral strain did not effectively sever
intervertebral disc syndrome from the Veteran's claim. A
statement of the case is not an appropriate tool for the AOJ to
change the scope of service connection. Accordingly, the Board
finds that it proper to address the Veteran's degenerative joint
disease and spinal stenosis as part the immediate evaluation of
the Veteran's disability rating.
The criteria for evaluating diseases or injuries of the spine
were amended on September 23, 2002, and again in September 2003.
In VAOPGCPREC 3-2000 (April 2003), VA's General Counsel held that
when a provision of the VA rating schedule is amended while a
claim for an increased rating under that provision is pending, a
determination as to whether the intervening change is more
favorable to the Veteran should be made. If the amendment is
more favorable, that provision should be applied to rate the
disability for periods from and after the effective date of the
regulatory change; and the prior regulation should be applied to
rate the Veteran's disability for periods preceding the effective
date of the regulatory change. The effective date of a
liberalizing law or VA issue is no earlier than the effective
date of the change. 38 U.S.C.A. § 5110 (West 2002).
Pre-September 3, 2002
Prior to September 23, 2002, a 40 percent rating was the highest
evaluation available for a lumbosacral strain. 38 C.F.R. §
4.71a, DC 5295 (2001). A review of other ratings available for
the spine show that under DC 5293 a 60 percent rating was
warranted by pronounced intervertebral disc syndrome with
persistent symptoms compatible with sciatic neuropathy with
characteristic pain and demonstrable muscle spasm, absent ankle
jerk or other neurological findings appropriate to the disc of
diseased disc and with little intermittent relief. 38 C.F.R. §
4.71a, DC 5293 (2001). Unfavorable ankylosis of the lumbar spine
called for a 50 percent rating, 38 C.F.R. § 4.71a, DC 5289
(2001); and favorable ankylosis of the entire spine called for a
60 percent rating. 38 C.F.R. § 4.71a, DC 5286 (2001). On
evidence of unfavorable ankylosis of the entire spine with marked
deformity and involvement of major joints or without other joint
involvement a 100 percent rating was for application. Id.
Finally, DC 5285 provided for a ratings relating to residuals of
fractured vertebra, where a 60 percent rating was indicated by a
lack of cord involvement and abnormal mobility requiring neck
brace; and a 100 percent rating was called for on the presence of
cord involvement with either bedridden status or requiring long
leg braces. 38 C.F.R. § 4.71a, DC 5285 (2001).
Of the codes described above which might afford the Veteran a
rating higher than his current 40 percent, the Board finds that
none are for application based on the evidence of record.
Specifically, because the Veteran's symptoms do not include
ankylosis of the spine, favorable or otherwise, a rating in
excess of 40 percent under DC 5286 or 5289 is not warranted.
Additionally, the numerous radiographic images made of his back
have shown the Veteran has not had any vertebral fracture.
With regard to symptoms of intervertebral disc syndrome under 38
C.F.R. § 4.71a, DC 5293 (2001), the Board notes that in April
2001 the Veteran reported pain radiating down both legs and some
numbness with burning pain. In July 2001 the Veteran had fatigue
with muscle spasms and weakness in the low back and In January
2002 he had decreased sensation in the left L4 and L5 dermatomes,
but normal reflexes bilaterally. In September 2002 deep tendon
reflexes were 2+ at the patellar level (indicating normal
reflexes) and 1+ at the Achilles level (indicating low normal
reflexes) bilaterally. In February 2004, knee and ankle jerks
were 2+ and symmetrical, and there was no weakness of the
extensors of the great toe. The Veteran has, throughout the
period on appeal, denied bladder and bowel incontinence. In
July 2008, Lasegue sign was negative, motor strength was five out
of five in the lower extremities, and dermatomal pattern revealed
numbness of the Veteran's entire lower left extremity from the
proximal thigh to all five toes. In January 2010, deep tendon
reflexes were "one out of four" in the patella and Achilles
bilaterally and Babinski sign was absent.
Based on his symptomatology, the Board finds that intervertebral
disc syndrome, to the extent that the Veteran has the disorder,
has not been productive of symptoms compatible with sciatic
neuropathy with little intermittent relief. Rather the Board
finds that the Veteran has had intermittent neurological
symptomatology with relief from epidural injections.
Accordingly, a 60 percent rating under 38 C.F.R. § 4.71a, DC 5993
(2001) is not warranted.
Based on the forgoing, the veteran is not entitled to a rating in
excess of 40 percent under the schedular criteria for
disabilities of the spine as in effect prior to September 23,
2002.
Pre-September 23, 2003
Effective September 23, 2002, the criteria for rating
intervertebral disc syndrome under Code section 5293 underwent
revision. As revised, for the period from September 23, 2002 to
September 25, 2003, Diagnostic Code 5293 states that
intervertebral disc syndrome is to be evaluated either based on
the total duration of incapacitating episodes over the past 12
months, or by combining under 38 C.F.R. § 4.25 the separate
evaluations of its chronic orthopedic and neurologic
manifestations along with evaluations for all other disabilities,
whichever method results in the higher evaluation.
Under Diagnostic Code 5293, as in effect from September 23, 2002
to September 25, 2003, a 40 percent rating is warranted for
incapacitating episodes having a total duration of at least 4
weeks but less than 6 weeks during the last 12 months. A 60
percent disability rating is warranted where the evidence reveals
incapacitating episodes having a total duration of at least 6
weeks during the past 12 months.
Note (1) to the new version of Diagnostic Code 5293 defines an
"incapacitating episode" as "a period of acute signs and
symptoms due to intervertebral disc syndrome that requires bed
rest prescribed by a physician and treatment by a physician.
"Chronic orthopedic and neurologic manifestations" were defined
as "orthopedic and neurologic signs and symptoms resulting from
intervertebral disc syndrome that are present constantly, or
nearly so."
In this case, the record shows that the Veteran has taken time
off of work due to his back symptoms. However, there is no
evidence that any periods of incapacitating episodes have
occurred. In a June 2007 letter, the Veteran stated that he had
been out of work and "in doctor's care and therapy" for three
months. Although the Board recognizes the Veteran's treatment
and time off, there is no indication of bed rest, prescribed by a
physician. Based on the foregoing, the revised version of
Diagnostic Code 5293, as in effect from September 23, 2002 to
September 25, 2003, cannot serve as a basis for an increased
rating on the basis of incapacitating episodes.
Post-September 23, 2003
The current General Rating Formula for Diseases and Injuries of
the Spine currently provides for ratings with or without symptoms
such as pain (whether or not it radiates), stiffness, or aching
in the area of the spine affected by residuals of injury or
disease. His current 40 percent rating is evidenced by forward
flexion of the thoracolumbar spine to 30 degrees or less; or
favorable ankylosis of the entire thoracolumbar spine. Favorable
ankylosis of the entire thoracolumbar spine calls for a 50
percent rating, and on a showing of unfavorable ankylosis of the
entire spine, a 100 percent rating is warranted. 38 C.F.R. §
4.71a (2009).
The Notes following the General Rating Formula for Diseases and
Injuries of the Spine provide further guidance in rating diseases
or injuries of the spine. Note (1) provides that any associated
objective neurologic abnormalities, including, but not limited
to, bowel or bladder impairment, should be rated separately under
an appropriate diagnostic code. Note (2) provides that, for VA
compensation purposes, the combined range of motion refers to the
sum of the range of forward flexion, extension, left and right
lateral flexion, and left and right rotation. The normal
combined range of motion of the cervical spine is 340 degrees and
of the thoracolumbar spine is 240 degrees. Note (6) provides
that disability of the thoracolumbar and cervical spine segments
are to be rated separately, except when there is unfavorable
ankylosis of both segments, which will be rated as a single
disability. Id.
Diagnostic Code 5243 (effective September 26, 2003) provides that
intervertebral disc syndrome is to be rated either under the
General Rating Formula for Diseases and Injuries of the Spine or
under the Formula for Rating Intervertebral Disc Syndrome Based
on Incapacitating Episodes, whichever method results in the
higher rating when all disabilities are combined under 38 C.F.R.
§ 4.25.
The Formula for Rating Intervertebral Disc Syndrome Based on
Incapacitating Episodes provides a 40 percent disability rating
for intervertebral disc syndrome with incapacitating episodes
having a total duration of at least 4 weeks but less than 6 weeks
during the past 12 months; and a 60 percent disability rating for
intervertebral disc syndrome with incapacitating episodes having
a total duration of at least 6 weeks during the past 12 months.
38 C.F.R. § 4.71a (2009).
As discussed, note (1) to Diagnostic Code 5243 provides that an
incapacitating episode is a period of acute signs and symptoms
due to intervertebral disc syndrome that requires bed rest
prescribed by a physician and treatment by a physician. Id.
Here, the Veteran is not entitled to a rating in excess of 40
percent based on limitation of motion. Specifically, his spine
is not ankylosed, nor does his pain on motion render him
functionally ankylosed. See Johnston v. Brown, 10 Vet. App. 80
(1997). Furthermore, as previously discussed, the Veteran's lack
of incapacitating episodes precludes direct application of DC
5243 to award a higher evaluation based on intervertebral disc
syndrome.
Rating Based on Neurologic Symptomatology
The Veteran's low back symptomatology may be productive of
disabilities ratable under Note (1) of the General Rating Formula
which provides that any associated objective neurologic
abnormalities, including, but not limited to, bowel or bladder
impairment, should be rated separately under an appropriate
diagnostic code. 38 C.F.R. § 4.120 (2009).
Medical opinions offered by the VA examiner in January 2010 and
by a private physician in October 2009 both indicate the
Veteran's low back disability to beproductive of the neurologic
symptoms described above. Accordingly, the Board now determines
an appropriate rating for the Veteran's neurological
manifestations of his service-connected lumbar strain syndrome
with degenerative joint disease and spinal stenosis.
In the present case, the objective neurological findings of
record relate to the lower extremities, and thus, Diagnostic
Codes 8520 through 8530 are potentially applicable. 38 C.F.R. §
4.124a (2009). In an evaluation of October 2009, it was
indicated that the Veteran had "confirmed peripheral nerve
impairment" for the common peroneal nerves bilaterally. Thus
the Veteran's symptomatology will be considered based on 38
C.F.R. § 4.124a, DCs 8521, 8621, and 8721 (2009) for the external
popliteal nerve (common peroneal).
Incomplete paralysis of the external popliteal (common peroneal)
nerve will be rated as 10 percent disabling where mild, 20
percent disabling where moderate, and as 30 percent disabling
where severe. Complete paralysis of the external popliteal
(common peroneal) nerve, with foot drop and slight droop of first
phalanges of all toes, such that the foot cannot dorsiflex,
extension (dorsal flexion) of proximal phalanges of toes is lost,
abduction of foot is lost, adduction is weakened, and anesthesia
covers entire dorsum of foot and toes will be rated as 40 percent
disabling. Neuritis and neuralgia of the external popliteal
(common peroneal) nerve will be rated on the same basis. Id.
The term "incomplete paralysis" with peripheral nerve injuries
indicates a degree of loss or impaired function substantially
less than the type pictured for complete paralysis given with
each nerve, whether due to the varied level of the nerve lesion
or to partial regeneration. When the involvement is wholly
sensory, the rating should be for mild, or at most, the moderate
degree. See note at "Diseases of the Peripheral Nerves," 38
C.F.R. § 4.124(a) (2009).
In rating peripheral nerve disability, neuritis, characterized by
loss of reflexes, muscle atrophy, sensory disturbances, and
constant pain, at times excruciating, is to be rated on the scale
provided for injury of the nerve involved, with a maximum equal
to severe, incomplete paralysis. The maximum rating to be
assigned for neuritis not characterized by organic changes
referred to in this section will be that for moderate incomplete
paralysis, or with sciatic nerve involvement, for moderately
severe incomplete paralysis. 38 C.F.R. §§ 4.123, 4.124 (2009).
Left Leg Neurologic Evaluation
The Veteran's left leg symptomatology reveals that a 10 percent
rating is warranted. Specifically, in January 2009 motor
strength was four out of five in his left hamstring. In October
2009 a private physician stated that a "sensory motor severity"
testing, including verification by EMG, found the Veteran's
common peroneal nerve symptoms to be "mild for distorted
superficial tactile sensibility and normal monofilament testing
of the lower extremity." Additionally, in January 2010, distal
sensation was decreased bilaterally to sharp and dull stimulation
and deep tendon reflexes were one out of four in the both patella
and Achilles tendons.
The Board recognizes some functional limitations, however while
these limitations were described as "poor endurance as well as
gait difficulties" by a private doctor in October 2009, the
Veteran told a VA examiner in January 2010 that he could walk for
two hours or stand for three hours before needing to rest. The
Board finds this to be demonstrative of only mild functional
impairment. The Veteran's overall disability picture relating to
his left leg indicates that a 10 percent evaluation should be
awarded. 38 C.F.R. § 4.124a, DC 8521 (2009).
Right Leg Neurologic Evaluation
The Veteran's right leg symptomatology reveals that a 10 percent
rating is warranted. In January 2009, the Veteran had full motor
strength in his right hamstring. As with his left leg, in
October 2009 a private physician stated that the Veteran's common
peroneal nerve symptoms to be "mild due to distorted superficial
tactile sensibility and normal monofilament testing of the lower
extremity." Again, decreased distal sensation and restricted
deep tendon reflexes in the patella and Achilles tendons were
noted in January 2010.
As stated, the Board recognizes some functional limitations,
however that the Veteran could walk for two hours or stand for
three hours before needing to rest shows that they are only mild.
The Board finds the Veteran's overall disability picture relating
to his right leg to indicate that a 10 percent evaluation should
be awarded for neurologic symptomatology of the extremity. Id.
Conclusions
All evidence has been considered and there is no doubt to be
resolved. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1
Vet. App. 49, 54-56 (1990).
Consideration of referral for an extraschedular rating requires a
three-step inquiry. See Thun v. Peake, 22 Vet. App. 111, 115
(2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir.
2009). The first question is whether the schedular rating
adequately contemplates the Veteran's disability picture. Thun,
22 Vet. App. at 115. If the criteria reasonably describe the
claimant's disability level and symptomatology, then the
claimant's disability picture is contemplated by the rating
schedule, the assigned schedular evaluation is, therefore,
adequate, and no referral is required. If the schedular
evaluation does not contemplate the claimant's level of
disability and symptomatology and is found inadequate, then the
second inquiry is whether the claimant's exceptional disability
picture exhibits other related factors such as those provided by
the regulation as governing norms. If the Veteran's disability
picture meets the second inquiry, then the third step is to refer
the case to the Under Secretary for Benefits or the Director of
the Compensation and Pension Service to determine whether an
extraschedular rating is warranted. Having reviewed the
evidence, the Board finds that referral to Under Secretary for
Benefits or the Director of the Compensation and Pension Service
for determination and assignment of an extraschedular rating is
not warranted.
ORDER
An evaluation in excess of 40 percent prior to September 23, 2002
for a lumbosacral strain is denied.
An evaluation in excess of 40 percent for chronic lumbar strain
syndrome with degenerative joint disease and spinal stenosis is
denied.
An evaluation of 10 percent for a left leg external popliteal
nerve disability
is granted subject to the controlling regulations applicable to
payment of monetary benefit.
An evaluation of 10 percent for a right leg external popliteal
nerve disability
is granted subject to the controlling regulations applicable to
payment of monetary benefit.
____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs